All of the property a person acquires during his life is collectively called an estate. When that person dies, the estate passes to his beneficiaries. In South Carolina, an estate can pass by will or through intestate succession. Additionally, certain property passes automatically based on type of ownership or through spousal right.
South Carolina's Probate Code sets forth the order in which beneficiaries inherit a decedent's estate when he dies intestate, or without a will. The surviving spouse is first and will inherit the entire estate if the decedent did not have children. If there are children to inherit, the surviving spouse inherits one-half of the estate and the children inherit equal shares of the remaining half. If the decedent is not survived by a spouse or children, other relatives can inherit in the following order: parents, siblings, nieces and nephews and then any other surviving relatives. If there are no relatives to inherit, the estate passes to the state of South Carolina.
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Not all property can be passed to beneficiaries through a will. This is because certain assets already have a beneficiary. Those named beneficiaries are entitled to inherit the property automatically after the person's death. These assets can include bank accounts designated "transfer on death" or "payable on death," life insurance policies and any property placed in trust. Additionally, any property the decedent owned jointly with someone else is automatically inherited by those remaining joint owners in equal shares.
A person making a will is called the testator. The South Carolina Probate Code sets forth the requirements a testator must meet in order for the will to be valid. A testator must be at least 18 years old and "of sound mind." This means he must be competent to know the property in his estate, know the beneficiaries he is leaving the estate to and voluntarily make the will. The will must be in writing, and the testator must sign it in the presence of two impartial witness, who are not receiving a bequest in the will.
A surviving spouse automatically has the right to a percentage of a decedent's estate in South Carolina. If a spouse is disinherited (left out of the decedent's will), the South Carolina Probate Code allows the spouse to seek an "elective share." The spouse must exercise this right within six months of the will being submitted for probate or eight months after the decedent's death, whichever occurs last. If the right of election is exercised properly, the probate court will award one-third of the estate to the surviving spouse.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.